In a sad chapter in the Alex Wubbels story, Bill Gray, the truck driver and reserve police officer critically injured–major burns over much of his body–in the crash that essentially began the chain of events leading to the false arrest of Wubbels’ has died:
Also, as a direct result of the Wubbels case, the Utah legislature is taking up legislation to clarify the issue of blood draws. The Salt Lake Tribune reports:
This is an important issue,’ said Rep. Craig Hall, a West Valley City Republican who is sponsoring the legislation. ‘I think that it will help medical facilities, help law enforcement if we can all get on the same page as to when it’s appropriate to take blood [and] when it’s not appropriate to take blood. I think it will serve everybody well.’ [skip]
Committee members hope to have a draft of the bill ready to review by November. The legislative session begins in January.
In many respects, this seems to be closing the barn door after the horses have escaped:
Wubbels’ attorney, Karra Porter, said Wednesday that she is not opposed to legislation on the issue but that ‘the law already clearly prohibits what the officers were doing and that didn’t stop them.
Obviously, Det. Jeff Payne and Lt. James Tracy were either ignorant of the law, or chose to ignore it when the gravitational pull on their badges suddenly and unexpectedly increased. This may hasten a decision in this case:
Attorney Greg Skordas, who represents Payne, said he and his client are scheduled to meet Monday with Brown to explain the detective’s side of the story.
Skordas said he and his client take issue with some of the conclusions of the internal affairs report, which says Payne violated six department policies. He did not specify what portions he did not agree with.
Payne is ‘truly sorry’ for his actions, according to Skordas.
‘Jeff recognizes he could have and should have done things differently,’ he said.
I’m sure that’s true. Whether this is a recognition driven by an awakened conscience, or the realization Payne’s job is on the line remains to be seen. This did not, however, prevent Skordas from doing his best to minimize Payne’s liability:
Skordas, however, has said a federal regulation requires a blood sample when a driver with a commercial driver license (CDL) is involved in a fatal accident, and that by getting a CDL, a driver is assumed to have consented to a blood draw. Gray, who is a full-time truck driver, has a CDL.
If we assume Skordas’ assertion is in context and accurate, there seems to be no evidence this was known to, or on the mind of, Payne. Those so moved, besides prayer, may wish to contribute to the Gray family:
Gray was severely burned on 46 percent of his body… Jennifer Stamper, a spokesperson for his family, said Wednesday. She said two accounts have been set up to help with medical and recovery expenses — a GoFundMe account and the William Gray Fund at Zion’s Bank, 149 W. Main St., Rexburg, ID 83440.
Stamper said in a news release that Gray’s wife is grateful to Wubbels for protecting her husband and appreciative of the hospital medical staff and the police officers who assisted at the accident site.
In addition, April Gray ‘wants the other driver’s family to know she is saddened for their loss,’ Stamper said.
Another source trying to minimize Payne’s actions is one Gregg Re, writing at The Daily Caller:
Prospective students are advised to steer clear of Wubbels’ courses. Despite reams of inaccurate reporting on the incident, Wubbels was likely legally wrong under federal law. The case is a much closer one than it appears. [skip]
Never mind the fact that Section 1.3 of the Utah Commercial Driver’s License Handbook states that ‘If you operate a CMV [commercial vehicle], you shall be deemed to have given your consent to alcohol testing,’ creating a potential implied consent justification for the blood draw because the victim was driving a commercial truck. Never mind that the hospital’s policy does not have the force of law, even if the local police department agreed to its terms. Crucially, the policy overlooks a well-established exception to the warrant requirement: Police simply do not need a warrant if exigent circumstances justify an urgent search and seizure of evidence. The imminent loss of blood evidence, which would be useful in a drunk-driving case, qualifies as a potentially exigent circumstance.
Except the Supreme Court has seemingly invalidated such implied consent laws. Payne also used the term “exigent circumstances” in his attempt to force a blood draw. An exigent circumstance amounts to an actual emergency such that failure to act immediately will cause the loss of irreplaceable evidence, or the potential loss of life. In such circumstances, normal Constitutional protections may be overridden, but only to the minimum possible degree and for the minimum necessary time.
In this case, there were no exigent circumstances. A man with Payne’s experience must have known hospitals draw and analyze blood as a matter of procedure in such cases. There was no way the blood, and its analysis, were going to be lost. In addition, Payne could have secured a telephonic warrant within minutes if necessary, yet he did not. Re has another run at his thesis:
But the case the Times cites, Missouri v. McNeely, does not stand for that proposition at all. The court explicitly held in McNeely that some drunk-driving cases could permit warrantless blood draws.
‘When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so,” the Court wrote. ‘Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts….
Again, Re tries to make the case for exigent circumstances, but fails. The remainder of his article all but admits Wubbels was in the right, but attacks her again in a vain attempt to justify his thesis:
Whether implied consent existed here because of Utah’s CMV policy, and whether Payne’s concerns as to the patient’s potential criminal wrongdoing were reasonable enough to justify the exigency exception, requires a fact-specific inquiry by a court under Supreme Court precedent, and all the facts supporting Payne’s suspicion are not yet clear. Regardless, it is certainly not, as the nurse suggested, de facto impermissible for police to seek a blood sample without an arrest, a warrant, or consent.
No fact-specific inquiry is necessary here, and Gray’s death, as well as the fact neither Payne nor the Logan Police Department, which had jurisdiction in the crash that ultimately killed Gray, sought his blood after the debacle at the hospital also renders the issue moot. Perhaps the most significant issue is Gray was an innocent victim, suspected of and charged with no crime. The police have less than no cause to seek blood from such a person, regardless of the purity or altruism of their motives. The fact that Tracy also realized Payne made a false arrest based on his crusade for Gray’s blood does not help Re’s argument.
Re also ignores the fact Wubbels was not trying to play legal tag with Payne. She was merely deferring to her superiors, whose counsel she carefully and properly sought. She actually produced a document reflecting the previously agreed to procedure between the hospital and the Salt Lake City PD. Payne, who had years of experience in blood draws and working with hospitals, chose to ignore that agreement. That agreement contained the “arrest, a warrant, or consent” comment to which Re refers without placing it in the correct context. Such hasty conjecture does not help Payne, nor place the police, in general, in a better light.
Expect resolution from the SLCPD side of this case sooner rather than later. I also expect Salt Lake City to come to a substantial, and undisclosed, settlement with Alex Wubbels sooner rather than later. In fact, I’d be surprised if those negotiations are not already underway. The City has essentially rolled over on its back, exposing its belly and begged Wubbels not to hurt it too badly.
More as it develops.